Truck Accidents

Articles

Ferguson & Ferguson

Attorneys at Law

It is certainly a fact that trucks are extremely different from other vehicles and obviously so — they’re bigger. They also use the public highways for a company’s economic gain. When trucks cause accidents, the results are usually disastrous. Each truck is different, as is each accident. Therefore, each accident must be investigated on an individual basis. When investigating trucking accidents, parameters need to be set out. Encompassed within those parameters is the necessity of investigating, dissecting and analyzing the physical evidence at the scene, as well as the technical evidence that is attached to the equipment, or as part of the equipment’s development. It is also vital to use those same techniques to investigate the company, drivers, shippers, and anyone else who might gain economically from the movement of the truck. All of the entities should be investigated and explored to see if they are partially responsible for the safe operation of that equipment, its load, the driver and so on.

As I mentioned, trucks are different and it is important for you understand how they connect, operate, and function. The most common commercial motor vehicle involved is the 18-wheeler, so for purposes of this article, I will discuss that vehicle and its components. The 18-wheeler wheeler is comprised of a tractor and a trailer, both of which are separate commercial vehicles. The trailer has 8 wheels, and the tractor has 10 wheels. The tractor has a coupling assembly known as the fifth wheel, and the trailer’s coupling device is known as the kingpin. The vehicles are connected together by latching the kingpin to the fifth wheel. Once connected, these latching components create a hinge. The hinge allows the unit to move and certainly turn, as everybody has witnessed this phenomenon at a corner. Trucks do bend when they have hinges, and the hinge mechanism can play an important part in the mechanics of an accident. For example, a driver can yank his foot off the throttle, and the trailer can push the tractor into a jackknife. Similarly, if the tractor has a Jake brake, which is an engine retarder, it can which control the speed of a truck. This is accomplished by creating resistance down to the drive train of the tractor. Since this is on one side of the hinge (5 th wheel), the trailer on the other side of the hinge can push the hinge into a bend, resulting in jackknife. Therefore, any investigation should include an inspection of the fifth wheel and kingpin.

As part of this investigation, one should explore whether the fifth wheel was adequately lubricated. If the fifth wheel is not lubricated sufficiently, the hinge will be very stiff, and this will cause the driver to have problems steering the combination. In some instances, the drivers may overreact, and this could lead to an accident. Thus, as part of your investigation, you will want to obtain lubrication records and inspection records, as well as statements and testimony as to inspection.

In addition to problems involving the coupling of the tractor and trailer, there are numerous aspects of the components of the equipment that can be a causative factor. For instance, a steering problem can also be caused by the suspension failing, breaking or being too light or too stiff. There are certainly other components that can cause problems. The equipment can have an air ride tractor, air ride suspension and an elliptical spring suspension on the trailer, and therefore you can have two different problems in terms of how the suspension reacts on the same combination. For example, let’s consider a semi truck. These trucks typically have an air ride suspension, which is a compensating suspension which levels or equalizes the pressure of the suspension in order to support the load. Assume it is parked and ready to dump in a slightly sideways attitude (ground slope). The compensating pressure of the air bags as the dump is being made can cause the frame of the tractor to change its “attitude,” which, in turn, can cause the dump truck to roll over. Since air suspension is a compensating suspension, a tractor with air ride, pulling a trailer with elliptical spring suspension can develop a different attitude or “stance” in a curve or a turn or any combination of those highway designs simply because of the difference in design structure. Therefore, any investigation should include finding out what type of suspension exists, an inspection on each component of the equipment, and what the specifications are for that system. IN addition, you will want to inspect the suspension to explore the viability and/or the condition of the equipment.

An unbalanced brake system can be a factor in lots of accidents. Unbalanced braking system can affect the steering, control, and stopping distance of the vehicle. Unbalanced means that you have a greater stopping ability on the tractor than you do the trailer, or vise versa. The braking system may also be unbalanced on a right-to-left basis or fore-to-aft. The right to left means that you can have a wheel on the left side of the system or axle that’s out-of-service, meaning that it does not work. If this happens, obviously you’re going to have a pull on the right side more than you will to the left. Therefore, as part of your investigation, you will want to examine the condition and adjustment of the brakes on both the tractor and the trailer to see if any conditions exist that would cause them to be unbalanced. You will obviously also want to review all of the maintenance and repair records.

You should also consider the condition of the tires, including their position and pressure, which this can have an impact on how the truck operates and functions. For instance, envision an axle with 4 tires on it. Each tire has a tire pressure of 100 pounds, and each tire and wheel will be “rated” for 6,000 pounds. So then, in theory, that axle and those 4 tires are rated for 24,000 pounds. If the tire pressure in one of the outside tires is reduced by 60 pounds, then the rating of that tire would also be reduced, and it would be much less than the other 3 tires. If the vehicle attempts to make a turn, the axel will be significantly less capable of supporting the maximum weight of the vehicle, and this will cause a larger footprint (tread on the ground), much more pressure on the sidewall, and much more pressure on the inner wheel, which can lead to accidents. Thus, when investigating and inspecting the equipment, the tire condition (how good is it), the position (outer or inner), where the axle is placed, and the tire pressure should always be noted.

In addition to the actual mechanical operation of the vehicle, you also need to other things that may have interfered with the drivers’ ability to safely operate his truck. You will want to examine the condition of the cab of the truck where the driver lives and whether or not the driver puts materials or equipment or signs or toys in the window of his passenger side that restricts his view into his mirror or on the dashboard. The investigation should include the line of sight of the driver, what that driver can see out of the mirrors, and where the blind spots are on the truck The mirror placement is absolutely a major part of driving. The driver should look in the mirrors every thirty or forty seconds while driving down the road in order to keep track of what is around that particular vehicle. The driver must know the blind spots that they exist, where they are, whether or not he is moving in to a blind spot. The investigation should also show where the blind spots are.

The investigation also cannot be limited to an inspection of the truck and its parts. You must also investigate the driver, his qualifications, his character, his experience, and how he got behind the wheel. You must also investigate the qualifications of the company itself and how the company system works needs to be explored. Your investigation of the company must include how the computer contacts, recruits, and interviews drivers. You also want to explore how the company trains and monitors drivers, as well as how they monitor drivers and determine whether they are qualified to drive their vehicles. They should also have a system for auditing their drivers. Essentially, you want to find out all of the things that the company does to arrive at the decision that this driver can now drive this truck in this set of circumstances. Drivers need to be investigated as to qualifications -regardless of experience. It’s quite common for a driver to be driving for twenty years in the trucking world and still not be able to pass a road test, because they cannot answer the questions about how the equipment works, what the regulations mean, and can’t tell you about hazardous conditions and their responses to those conditions. They may well be a driver that has driven 19 years on flat land and now being dispatched into the mountain areas of California, as an example.

If maintenance becomes an issue, then certainly the training of maintenance and shop personnel becomes an issue. The training of the safety department and its personnel is always important. The investigation must go deeply into the company in terms of how their system works. It’s important for the investigator to examine everything in the company that deals with drivers, mechanics, maintenance, owners/operators, dispatch, safety, company procedures, and so on. So all of these investigative things need to be a part of the investigation and the investigator’s portfolio.

The modern trucks are getting more and more sophisticated. Part of that sophistication began to develop in the 1992 models (this is also true of automobiles). At that time, the truck began having Engine Control Modules (ECM), which are motor mounted computers. The ECM’s came into existence because the government, in an effort to reduce air pollutants, mandated that engine manufacturers have better, more efficient engines and fuel systems. The ECM does this by distributing fuel in the engine and monitoring the engine to see how it is doing. From the time the engine is first used, the ECM will keep a record of how many hours the engine runs, at what speeds, how many hours the engine idles, and how many hours the engine is off. This can give the manufacturer a chance to track the efficiency of the engine as time goes by -as well as the treatment that engine gets by the “end user”.

In later models, such as ’95 and ’96 and the later era of time, there are more and more modes put into the ECM software. One of them is commonly called the Pro Driver mode, although different manufacturers have different names for this. If the engine has a hard stop or sudden deceleration that exceeds seven feet per second, this mode will create a recording of precisely when that happened and what the speed of the truck was. Typically, it will also go back and save the last forty seconds that took place immediately prior to the hard braking. That record stays in the computer until there are two more hard braking applications. After a third hard braking application, the first one will be deleted. Keep in mind that all the engine manufacturers have ECM’s, but they contain different modes, and different modes recorded different information. Therefore, as part of your investigation, you will want to obtain the specifications for the ECM that was on the truck involved in the collision. In general, the later the model, the more information you’re going to have. You will then need to have someone download that information from the ECM, and generally, the engine manufacturer in the shops will download them. However, Detroit Diesel has a system where they will recommend people around the country who have gone to their classes and can download the engine information so you can have that kind of information very quickly. Your job as the investigator is to discover what type of ECM was on board and what information can be downloaded from it. In doing this, be forewarned — sometimes you’ll be disappointed because the modes will not contain the information you are seeking. For example, if you have a collision that does not involve a rapid deceleration, such as a sideswipe, the ECM might not be activated, and therefore, there is no information to retrieve.

Some trucks also contain an on-board locating system. The most common and well-known system is Qualcomm. This is a global positioning system that geographically tracks where a truck is at any given time. The Qualcomm system also allows the driver to communicate with his dispatcher, and also serves as an on-board fax machine. The driver can hit an emergency button indicating that he has an emergency, and then dispatch in theory can respond to that. It’s important to realize that generally the companies don’t download that information and have it available for an instant investigative inquiry. In fact, they aren’t required to under the regulations, and for the most part, it is not practical for large companies who run thousands of trucks to download the ECM material or the Qualcomm material. Therefore, if there is a collision, you will need to act quickly to obtain this material. If you don’t get it within 30 days, there’s a high probability that the information will be deleted.

You will also need to act quickly to obtain other documents, including the driver’s qualification file, logs and payroll records. All of those things are computer monitored or generated need to flagged. (A complete list of all of the documents that you will want to obtain is attached to the end of this article). Of note, the GPS system can indeed by virtue of comparing geographic positions, be used for log auditing, and indeed the speed of the equipment. Auditing can be held, because the truck did have an incident or accident and the driver needs the support for his story and/or the company needs to investigate to insure that they have an obligation to whomever they had the accident with or the training of the driver and so on.

I don’t think that I could emphasize enough that the activities concerning an accident investigation should be done quickly. Many times you don’t get the information for a year or so, and the company has had an opportunity to indeed hide behind the regulations that say they can remove the documentation. There isn’t any regulation that deals with Qualcomm systems and saving the data that I know of. The importance now of this message is go quickly, to get the right investigators, to gather as much data as you can, to spend as much as time as you can gathering that information, write that letters that hold the equipment for inspection. Those are all legal things that you all know very well, but they’re also things that I can recommend. If the truck had an accident at eight o’clock this morning I would like to be looking at the truck at nine o’clock this morning if that’s possible. Obviously that’s not possible in most cases, but never the less it would be a nice thing to think about. The quicker you get to it, the better the evidence most of the time.

Checklist for Documents to Obtain in Trucking Accidents

RECORDS THAT SHOULD BE OBTAINED FROM THE DRIVER:

Registration if owner/operator

Trip Records

Commercial Driver License

Road Test Certificate

Written Test Certificate

Medical Certificate

Log Book

Bills of Lading

Road Expenses

Personal Expenses

RECORDS THAT SHOULD BE OBTAINED FROM THE COMPANY AND VEHICLE:

Driver Qualification File which includes:

Driver’s Application for Employment

Response from State Agencies and Past Employers Concerning Driver’s Record

The Rules Of The Road – Understanding The Federal Motor Carrier Safety Regulations

By: John M. McCabe

Recognizing the significant
dangers posed by heavy trucks traveling on our roadways, the United States
Congress promulgated the Motor Carrier Act in 1935. The Motor Carrier Act
created the Bureau of Motor Carriers of the Interstate Commerce Commission,
which, in turn, became responsible for developing and enforcing safety
regulations for the trucking industry. The safety regulations developed by the
Interstate Commerce Commission are entitled the Federal Motor Carrier Safety
Regulations (“FMCSR”), and they address almost every aspect of interstate
trucking and were developed in order to “help reduce or prevent truck and
bus accidents, fatalities and injuries.”[1]

Despite the extensive
deregulation of the trucking industry that occurred throughout the 1980’s and
the collapse of the ICC in 1995, the FMCSR remain the sole safety standards
that professional truck drivers and motor carriers must follow in the operation
of commercial motor vehicles, and any deviation from these standards exposes
the motor carrier and driver to liability. Therefore, an attorney representing
the victims of trucking collisions must be extremely familiar with the FMCSR. The FMCSR are incredibly extensive, and any
attempt to discuss every provision is well beyond the scope of this
article. Therefore, the article will
address the provisions that are more relevant from a legal standpoint, and it will
hopefully serve as a reference guide that you can consult whenever you have a
trucking case.

To Whom Do The FMCSR Apply?The
FMCSR apply to any person or company that operates a commercial motor vehicle
to transport property or passengers in interstate commerce.[2] Under the regulations, a “commercial motor
vehicle” is defined as:

a vehicle with a gross vehicle weight rating or gross
combination weight rating of more than 10,000 pounds, or

a vehicle that is designed or used to transport 9 or
more passengers, including the driver, for compensation (e.g., a Greyhound
bus), or

a vehicle that is designed or used to transport 16 or
more passengers, including the driver, that is not being used to transport passengers for compensation, or

a vehicle that is being used to transport a hazardous
material in a quantity requiring placarding under the Hazardous Materials
Transportation Act.[3]

Thus, the FMCSR
regulations are not limited just to tractor-trailer trucks, they also apply to
buses and similar vehicles. However,
the regulations do not apply to school buses.[4] The regulations also do not apply to
transportation being performed by the Federal government, a State, or any
political subdivision of a State.[5]

The FMCSR will
apply only if the commercial motor vehicle is being used in interstate commerce. “Interstate commerce” is defined as meaning
any transportation that involves crossing a State line, including international
boundaries. It also includes
transportation that occurs wholly within one State so long as the trip
originates or terminates in another State or country.[6]

Moreover, while
the FMCSR state that a non-passenger-carrying vehicle must be carrying
“property,” this does not mean that the regulations will apply only when a
vehicle is hauling cargo. This is
because the vehicle itself is considered “property.” Therefore, the FMCSR will apply to almost any situation in which
a commercial motor vehicle crosses a State line at some point during its
trip. For example, the regulations
would apply if an empty tractor-trailer truck crosses a State line for repairs
or maintenance. Similarly, the FMCSR
would apply when a driver is driving the vehicle back and forth between his
employer’s terminal and his out-of-state home.

It should be
noted that the regulations are not limited to situations where the vehicle is
actually on a highway. The regulations
also cover situations where the vehicle is off the road, being loaded or
unloaded, or is waiting to engage in interstate commerce.

What Requirements Must Be Met In Order to
Operate A Commercial Motor Vehicle?In order to qualify to drive a
commercial motor vehicle, a person must be at least 21 years old. A person must also be able to read and speak
English sufficiently to converse with the general public, understand road
signs, and make entries in reports and records.

The regulations
also require that the person must be able to safely operate the commercial
motor vehicle that he drives by reason of experience, training or both.[7] In order to establish whether a driver has
satisfied this requirement, a motor carrier must conduct or otherwise arrange
for the conducting of a road test of any driver, and a motor carrier cannot
permit the driver to operate a commercial motor vehicle until the driver has
been issued a certification showing that he has successfully completed the
test.[8] During the road test, the driver must
operate the type of motor vehicle that the carrier intends for him to drive,
and at a minimum, he must demonstrate that he is capable of:

performing a pre-trip inspection of his vehicle to make
sure it can be operated safely
(pre-trip inspections are discussed in more detail below);

coupling and uncoupling any combination units, such as
a tractor and a trailer;

These
requirements may be waived if the driver presents a certificate from a State
indicating that he has passed a road test within the last three years.[10]

In addition, a
driver must pass a DOT medical examination showing that he is qualified to
drive a vehicle.[11] This physical must be given by a physician
who is knowledgeable of the specific physical and mental demands associated
with operating commercial motor vehicles, and if the driver passes the
examination, the physician must complete a certificate of physical fitness,
which he must provide to the driver and to the motor carrier.[12]

Under the
regulations, persons with certain medical conditions are considered physically
incapable of safely operating a commercial vehicle. For instance, any person who has lost a foot, leg, hand, or arm,
or who otherwise has an impairment of a hand, finger, foot, or leg that
interferes with the ability to perform normal tasks associated with operating a
commercial motor vehicle, such as power grasping, is not qualified physically
to drive a vehicle. The regulations
also provide that a person with insulin-dependent diabetes mellitus cannot
drive a commercial motor vehicle.
Moreover, persons with a medical history or diagnosis of respiratory
dysfunction, high blood pressure, arthritis, rheumatic disease, orthopedic
disease, muscular disease, neuromuscular disease, vascular disease, mental
disorders, nervous disorders, or psychiatric disorders are prohibited from
driving a motor vehicle if the condition interferes with his ability to control
and operate a commercial vehicle. In
addition, a person cannot drive a commercial motor vehicle if he has been
diagnosed with a myocardial infarction, angina pectoris, coronary
insufficiency, thrombosis, or other cardiovascular disease that might be
accompanied by congestive heart failure, shortness of breath, a temporary loss
of consciousness, or collapse.
Similarly, a person with epilepsy or any other condition that might
cause a loss of consciousness or an inability to control the vehicle is not
qualified to operate these vehicles. With
respect to visual acuity, the regulations require that a person must have
corrected vision of 20/40 or better, and he must be able to recognize the
colors of traffic signals and devices.[13]

The regulations
also state that certain persons are automatically disqualified from operating
commercial vehicles. Under the
regulations, a driver is disqualified if he has been convicted of driving a
commercial vehicle while his alcohol concentration is .04% or more or operated
a commercial motor vehicle while under influence of a prohibited drug. Similarly, if a person refused to undergo
certain alcohol or drug testing, he would be disqualified. Other disqualified drivers include persons
who have committed a felony involving the use of a commercial motor vehicle, or
who left the scene of an accident while operating a commercial motor vehicle.

One CDL Per Person. In order to assist in the tracking and
identification of unsafe drivers, the FMCSR provide that a driver can only have
one commercial driver’s license (CDL).[14] Therefore, an unsafe driver cannot create a
“clean driving record” simply by moving to another State and obtaining a new
CDL. In order to safeguard against this
and make sure a driver does not already possess a CDL, States are required to
be connected to the Commercial Driver’s License Information System (CDLIS) and
the National Driver Register (NDR), which are systems by which information is
exchanged regarding commercial motor vehicle drivers and their traffic
convictions and disqualifications.
Before issuing a CDL, a State must use both the CDLIS and NDR to check a
driver’s record and to make certain that the applicant does not already have a
CDL. Employing motor carriers also have
access to the CDLIS, and employers are prohibited from knowingly allowing a
person with more than one CDL to operate a commercial motor vehicle.[15]

Pre-Employment Information That A Driver
Must Furnish. Under the
regulations, at the time a driver applies for a job, he must provide the
potential employer with information regarding his previous experience as a
driver. This information must include a
list of all employers for whom the driver operated a commercial motor vehicle,
the dates of employment, and the reason(s) why the driver left such employment.[16] The driver must certify that the information
is true and complete.

A Motor Carrier’s
Duties To Investigate & Review Its Drivers. Under the regulations, an
employer is required to investigate each of its drivers. Within 30 days of hiring a driver, the
employer must review of the driver’s employment record by contacting each of
the driver’s employers for the previous 3 years.[17] The investigation may consist of personal
interviews, telephone interviews, letters, or other methods of obtaining
information. [18] The employer is required to make a written
record of each interview. This record
must include the previous employer’s name and address, the date of the
interview, and the previous employer’s comments regarding the driver.[19] In addition, within 30 days of hiring a
driver, the employer must contact each State in which the driver has held a
driver’s license during the previous three years, and obtain a copy of the
applicant’s driving record.[20]

After a driver is hired,
the employer must review the driver annually to make sure that the driver
remains qualified to drive a commercial motor vehicle and that he still meets
the minimum requirements for being able to safely drive the vehicle.[21] As part of this annual review, the employer
must require all of its drivers to furnish it with a certified list of all
motor vehicle violations that the driver has been convicted of during the year.[22] Moreover, in order to make sure the driver
has provided full and complete information, the employer has a duty to obtain
an updated copy of the driver’s driving record.[23] In reviewing the driver’s safety, the
employer must consider the driver’s accident record, as well as any violations
of the FMCSR or motor vehicle laws.[24] The regulations require the employer to give
“great weight to any violations that indicate that a driver has exhibited a
disregard of public safety,” which include speeding, reckless driving, and
driving while under the influence of alcohol or drugs.[25]

Driver Qualification Files.
Employers are required to maintain a driver qualification file for every
driver at the time of his employment.
At a minimum, the file must contain the driver’s application for
employment, the driver’s road test certification, a written record regarding
each past employer contacted as part of the hiring process, the driver’s
certificate of physical examination, the lists or certifications regarding the
driver’s motor vehicle violations, and the documents relating to the annual
review of the driver’s driving record.[26] The driver qualification file must be kept
at the employer’s principal place of business for as long as the driver is
employed by that motor carrier and for three years thereafter.[27]

A Driver’s Duty To Report Traffic
Convictions.In addition to the annual certifications that
a driver must provide to his employer, the regulations also require a driver
must report any traffic conviction, except parking convictions, to his
employer within 30 days of the conviction.[28] This notification must occur regardless of
the nature of the violation or the type of vehicle that was being driven at the
time. Thus, if a driver is convicted of
a violation involving the use of his personal automobile, he must report it to
his employer. In addition, the driver
must also provide notice of the violation to the State that issued his
CDL. The notification must contain the
driver’s full name, license number, the date of conviction, the location of the
offense, the specific offense(s) of which the driver was convicted, and whether
the violation involved the operation of a commercial motor vehicle.

In the event
that a conviction results in the suspension, revocation, cancellation, or
disqualification of a driver’s license, the driver must notify his employer of
this before the end of the business day following the day that he receives
notice of the suspension or revocation.[29]

Maximum “Driving Time” and “On Duty Time.”Driver fatigue is the leading cause of
trucking accidents, and in an attempt to reduce the number of these accidents,
the FMCSR contain hours-of-service regulations that specifically dictate the
maximum number of hours that a driver can spend going about his business. In setting out these rules, the regulations
differentiate between “driving time” and “on duty time.” “Driving time” refers to the actual amount
of time a driver spends “at the driving controls of a commercial motor vehicle
in operation.”[30] “On duty time” is much broader, and it
includes the time from when a driver “begins work or is required to be ready to
work and it continues until the driver is relieved from work and all
responsibility for performing work.”[31] Thus, while on duty time would include
driving time, it also includes the time that a driver performs
non-driving-related tasks, such as waiting at a terminal to be dispatched,
supervising or participating in the loading or unloading his vehicle, and any
time spent inspecting, repairing, or servicing his vehicle. It also includes any time that the driver is
physically in his vehicle, unless he is sleeping in the sleeper berth.

For the first
time in 60 years, the Federal Motor Carrier Safety Administration just revised
the hours-of-service regulations in hopes of providing drivers with better
opportunities to obtain sleep. The
revised regulations, which become effective January 4, 2004, are based upon a
24-hour cycle and a 7-day cycle, and they adjust depending on the type of
vehicle being driven.

For
property-carrying commercial vehicles, such as tractor-trailer trucks, drivers
cannot drive more than 11 cumulative hours per day, and they can only be “on
duty” for 14 hours per day.[32] In the event that a driver encounters
adverse driving conditions, such as snow, sleet, fog, or an unusual road or
traffic condition, the driver is permitted to drive an additional 2 hours over
the 11-hour maximum driving time to complete his run or to reach a safe and
secure place.[33] In between shifts, the driver must be off
duty for at least 10 consecutive hours.[34] However, if the driver has a sleeper berth,
he does not necessarily have to be off-duty for 10 straight hours. Rather, the regulations provide that the
driver can accumulate the equivalent of 10 consecutive, off-duty hours by
taking 2 periods of rest in the sleeper berth, so long as the following three
requirements are met:

(i)
Neither period in the sleeper berth is less than 2 hours;

(ii)
The driving time in the period immediately before and after
each rest period when added together does not exceed 11 hours; and

(iii)
The on-duty time in the period immediately before and after
each rest period when added together does not include any driving after the 14th
hour.[35]

Moreover, a
driver cannot accumulate more than 60 hours of on-duty time during 7
consecutive days or 70 hours during 8 consecutive days. It is important to keep in mind that this
restriction applies to on-duty time, not driving time. In order to restart the 7/8-consecutive-day
requirement, the driver must take 34 or more consecutive hours of off-duty
time.[36]

For
passenger-carrying commercial vehicles, such as buses, the 7-day and 8-day
on-duty requirements are the same as those for property-carrying vehicles, but
the daily driving time and on-duty requirement are not. Under the regulations, a driver of a
passenger-carrying vehicle cannot drive more than 10 cumulative hours per day,
and they can only be “on duty” for 15 hours per day.[37] Drivers of these vehicles must have 8
consecutive hours of off-duty time.
However, if the vehicle is equipped with a sleeper berth, the driver can
fulfill this requirement by taking 2 periods of rests in the berth, provided
that:

(i)
Neither period in the sleeper berth is less than 2 hours;

(ii)
The driving time in the period immediately before and after
each rest period when added together does not exceed 10 hours;

(iii)
The on-duty time in the period immediately before and after
each rest period when added together does not include any driving after the 15th
hour; and

(iv)
The driver may not return to driving subject to the normal
limits allowed without taking at least 8 consecutive hours off duty, at least 8
consecutive hours in the sleeper berth, or a combination of at least 8
consecutive hours off duty and sleeper berth time.[38]

Daily Logs and On-Board Computers.In order to monitor and keep track of a driver’s hours of service,
the FMCSR require every driver to prepare a
“Record of Duty Status,”which is more commonly referred to as the “daily log.”[39] The log
contains a grid, which covers a 24-hour period, usually running from midnight
to midnight. The grid has separate rows
for the four ways that a driver can spend his time: off-duty time, sleeper
berth time, on-duty time, and driving time.
As indicated by the example below, a driver
completes the grid by drawing a continuous line indicating how he spent his
time during the entire 24-hour period.

In this example, the driver
reported for duty at the motor carrier’s terminal in Richmond, Virginia at 6:00
a.m. He helped load his cargo, checked
with dispatch, made a pre-trip inspection, and performed other duties until
7:30 a.m., which are all reflected as on-duty time. The driver began driving at 7:30 a.m. At 9:00 a.m., the driver had a minor accident in Fredericksburg,
Virginia, and he spent a half of an hour handling details with the local
police. The driver arrived at the company’s Baltimore, Maryland terminal at
noon and went to lunch while minor repairs were made to the tractor. At 1:00 p.m., the driver resumed the trip
and made a delivery in Philadelphia, Pennsylvania, which took from 3:00 p.m. to
3:30 p.m. At 3:30 p.m., he began
driving again. Upon arrival at Cherry
Hill, New Jersey at 4:00 p.m., the driver entered the sleeper berth for a rest
break. He remained in his sleeper berth
until 5:45 p.m., at which time the driver resumed driving. At 7:00 p.m., the
driver arrived at the company’s terminal in Newark, New Jersey. Between 7:00
p.m. and 8:00 p.m. he prepared the required paperwork including completing the
driver’s record of duty status, driver vehicle inspection report, and other
paperwork. At 8:00 p.m., the driver
went off duty.

In
addition to the grid, the logs must also include the date, the location of any
change of duty, the truck/tractor and trailer numbers, the name of the
carrier(s) for whom he drove during the day, the time the 24-hour period
started, and the names of co-drivers.[40] The logs also must show the total miles
driven during the 24-hour period.[41] From a legal standpoint, this is very
important because it allows you to determine a driver’s average speed. For
example, if the log reflects that the driver drove 600 miles during 10 hours of
driving time, the average speed would be 60 miles per house, and this could be
very important if your investigation shows that the majority of the roads
traveled during the trip had 45 mile per hour speed limits.

The
FMCSR require the drivers to complete duplicate logs for each 24-hour
period. The driver is required to keep
one of the copies for his own records for 7 days.[42] The driver must submit the other copy of the
log to his employing motor carrier within 13 days.[43] The carrier is then required to keep the
logs for 6 months. [44]

In
lieu of written logs, motor carrier may require drivers to record their hours
of service by using automatic, on-board computers.[45]
These computers must be able to produce, on demand, a chart, printout, or
electronic display of the time and sequence of a driver’s changes in duty
status, including the driver’s starting time at the beginning of each day.[46] The computer must contain all of the other
information, such as total miles and total hours, which is required to be
contained in handwritten logs.[47] In addition, the computer must be able to
display the total hours a driver was on-duty for the previous 7 and 8 days.[48] If there is a computer failure, the driver
must record that failure and attempt to reconstruct his duty status for the
previous seven days by using handwritten logs.
Thus, even if an on-board computer is being used, the regulations
require each vehicle to have a supply of blank driver’s logs containing the
hours-of-service grids.[49]

Required Maintenance & Inspections of
Commercial Motor Vehicles.In general, every motor carrier must
systematically inspect, repair, and maintain all motor vehicles subject to its
control.[50] While the regulations do not define what
“systematic” means, the DOT interpretations indicate that the motor carrier
must have a “regular or scheduled program to keep vehicles in a safe operating
condition.”

In addition,
carriers have a duty to make sure all parts and accessories are in safe and
proper operating condition at all times.[51]
This includes the brakes, lighting devices, reflectors, electrical equipment,
windows, fuel system, coupling devises, emergency equipment, frame and frame
assemblies, suspension systems, axles and attaching parts, wheels and rims, and
steering systems.[52]

With respect to buses, the regulations further provide that all pushout
windows, emergency doors, and emergency door marking lights must be inspected
at least every 90 days.[53]

As part of the
inspection and service requirements, the FMCSR require motor carriers to
maintain the following records for each vehicle that it has controlled for 30
consecutive days or more:

(1) An identification of the vehicle including company number, if so
marked, make, serial number, year, and tire size. In addition, if the motor
vehicle is not owned by the motor carrier, the record shall identify the name
of the person furnishing the vehicle;

(2) A record setting out the nature and due date of the various
inspection and maintenance operations to be performed;

(3) A record of inspection, repairs and maintenance indicating their
date and nature; and

(4) A record of tests conducted on pushout windows, emergency doors,
and emergency door marking lights on buses.

These records
must be retained by the carrier wherever the vehicle is either housed or
maintained for a period of 1 year. They
must also be retained for 6 months after the motor vehicle leaves the motor
carrier’s control.[54]

In addition to these responsibilities, at the
completion of each day’s work, a driver must inspect the following parts and
accessories of the vehicle:

As part of this
inspection, the driver is required to identify any defects or deficiencies that
would affect the safe operation of the vehicle or result in a mechanical
breakdown.[56] If any defects or deficiencies are reported,
they must be repaired before driver can be required or permitted to drive the
vehicle.[57] The driver must complete a written report of
this inspection, which is known as a “Driver Vehicle Inspection Report” or
DVIR, and submit it to his employing motor carrier.[58]

The carrier is then required to hold onto DVIR for 3 months.

The driver is
also required to perform a pre-trip inspection before he begins driving a
commercial motor vehicle.[59] The FMCSR do not mandate drivers to make a
written report of this inspection, but most employers nevertheless require such
a report. In conducting this
inspection, the driver must inspect to vehicle to make sure that it can be
operated safely.[60] This involves inspecting the same parts and
accessories involved with the post-trip inspection (i.e., brakes, steering,
lights, tires, horns, mirrors, emergency equipment, and windshield wipers).[61] The driver must also review the last DVIR,
and if any defects or deficiencies were noted on the DVIR, the driver must
certify that they have been repaired before he can operate the vehicle.[62]

In addition to
the vehicle itself, a driver must be knowledgeable about how to properly load,
distribute, and secure any cargo that he is transporting.[63] Before beginning a trip, the FMCSR require
him to inspect the cargo to make sure it is properly distributed and adequately
secured.[64] He must also make sure that the vehicle’s
tailgate, tailboard, doors, tarpaulins, spare tire, and any equipment used to
fasten the cargo are secured.[65] After beginning his trip, the driver must
inspect the cargo within the first 50 miles to make sure that it has not
shifted and that it is still secure.[66] The driver must then reexamine the cargo
after the vehicle has been driven for 3 hours or 150 miles, whichever comes
first. Additional reexaminations must
take place whenever there has been a change in the drivers’ duty status.[67]

Radar Detectors.Under the FMCSR, the
driver of a commercial motor vehicle is strictly prohibited from operating a
vehicle that is equipped with or contains any form of a radar detector, and a
motor carrier is prohibited from requiring or permitting a driver to use such a
device.[68]

The Rules Regarding to Alcohol & Drug
Use in The Trucking Industry.The Omnibus Transportation Employee
Testing Act of 1991 required mandatory alcohol and drug testing of safety
related employees in the aviation, motor carrier, railroad, and mass transit
industries. These testing rules apply
to drivers who are required to have commercial drivers’ licenses, including
interstate and intrastate truck and motor coach operations.

There
are three different forms of testing: pre-employment testing, random testing, and
mandatory post-accident testing. With
regard to pre-employment testing, a carrier is generally required to give a
driver a pre-employment drug and alcohol test before the driver can perform any
“safety-sensitive function.”[69] Under the regulations, safety-sensitive
functions are not limited to driving.
Rather, these functions include basically any on-duty activity,
including the time that a driver is at a terminal waiting to be dispatched, all
time spent inspecting or servicing his equipment, any time giving or receiving
shipping receipts, and any time spent participating in or supervising the
loading or unloading of his vehicle.[70] If the employer does not give a
pre-employment drug and alcohol test, the employer must verify that the driver
participated in a qualifying testing program within the previous 30 days and he
was drug tested in the previous 6 months or was in a random testing program for
the previous 12 months.[71] The employer must also verify the dates that
the driver was last tested and the results of that test.[72] The employer also has a duty to make sure
that the driver never refused to be tested and that, as far as the previous
employer may know, the driver did not violate any federal alcohol or drug
regulations.[73]

The FMCSR also require mandatory,
random drug and alcohol testing.[74] The regulations contain formulas that set
out how many random tests must occur each year. With respect to alcohol testing, the regulations provide that, in
general, the minimum, annual testing rate shall be “10 percent of the average
number of driver positions.”[75]The regulations require more frequent drug
tests and generally impose a minimum, annual rate of “50 percent of the average
number of driver positions.”[76] Thus, if an employer employs an average of
100 drivers during a year, there must be 10 random alcohol tests conducted
during that year (10% x 100 drivers) and 50 random drug tests (50% of
100). Under the regulations, the
Administrator of the Federal Motor Carrier Safety Administration is authorized
to increase or decrease these percentages to allow for more or less tests based
on annual alcohol and drug management reports that must be generated under the
regulations.[77] In conducting the tests, employers must
maintain pools containing the names of all its drivers. The pools must be set up so that all drivers
have an equal chance of being selected.
The driver’s name is selected out of the pool, and once selected, a
driver is required to proceed to the testing site immediately.[78] After the employee is tested, his name must
be returned to the selection pool, and he remains a candidate for future tests
that year.[79]

The
regulations also provide for drug and alcohol testing following motor vehicle
accidents. However, this testing is not
always mandatory. Rather, whether a
test is required depends on the nature of the injuries or damage involved and
whether the driver received a citation.
If a collision involves a human fatality, then the driver must be
tested, even if he did not receive any citations.[80] On the other hand, if the collision caused a
non-fatal injury that required medical attention away from the accident scene,
the testing will be required only if the truck driver received a citation.[81] Similarly, testing is also required if one
or more vehicles incur “disabling damage” and the driver receives a
citation. If the accident did not
involve a fatality and the truck driver did not receive a citation, the testing
is not required.

Driving under the Influence.
While North Carolina law provides that a person is under the influence
of alcohol if his alcohol concentration is 0.08 or more,[82]

the FMCSR, which preempt State law,[83]
provide that the driver of a commercial motor vehicle will be considered to be
under the influence of alcohol if his concentration is 0.04 or more.[84] Moreover, regardless of the level of alcohol
in a driver’s body, if an employer knows that the driver has used alcohol, the
employer cannot permit the driver to perform any “safety-sensitive functions.”[85]

What Documents Are Motor Carriers Required
To Maintain Following An Accident?The FMCSR requires motor carriers to
maintain an accident register, which is a list of all accidents involving its
vehicles. For each accident, the register
must list the date of the accident, its location, the driver’s name, the number
of injuries or fatalities, and whether or not hazardous materials were
released. The register must also
contain copies of the accident report for each wreck. The following is an example of an accident register:

The carrier must
maintain the accident register for a period of one year.[86] Obviously, an attorney representing a victim
of a trucking accident should obtain a copy of the accident register as part of
his standard discovery requests.

Insurance Coverage For Commercial Motor
Vehicles.While North Carolina law only requires minimum liability
coverage of $30,000-per-person, $60,000-per-accident, the FMCSR require
substantially more coverage for commercial motor vehicles. Under the regulations, the minimum amount of
coverage required for tractor-trailer vehicles is $750,000, and if hazardous
materials are being transported, the coverage may be increased to $1,000,000 or
$5,000,000, depending on the classification of the hazardous material.[87] For motor carriers that are transporting
passengers, such as buses, if the vehicle seats 15 or less people, the minimum
coverage is $1,500,000, but if the vehicle seats 16 or more people, the
coverage must be at least $5,000,000.[88]

Conclusion. Again, the intent of this article was to summarize the most
relevant provisions of the FMCSR. The
FMCSR contain many provisions that simply could not be covered, and therefore,
whenever you represent the victim of a trucking collision, you should
immediately review the regulations to see what additional rules apply to your
case. You should also consult other
materials, such as the North Carolina Commercial Drivers’ License Handbook, in
develop theories of liability and determine areas to explore during discovery.

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